Under Title VII of the Civil Rights Act of 1964 and the Massachusetts Fair Employment Practices Act, it is unlawful to discriminate against any employee or applicant for employment because of his or her race, color, or national origin. Race discrimination can come in many forms, from the most obvious to the extremely subtle.
Race Discrimination Based on Disparate TreatmentRace discrimination can arise as disparate treatment, where an employer intentionally treats employees of a particular race less favorably than employees of a different race. In Postal Service v. Aikens, the Supreme Court made clear that victims of race discrimination need not submit direct evidence of discriminatory intent. Rather, in acknowledging that such cases rarely involve “smoking gun” evidence, the Supreme Court held that circumstantial evidence can be used to prove the existence of unlawful motive in race discrimination cases:
The prohibitions against discrimination contained in the Civil Rights Act of 1964 reflect an important national policy. There will seldom be “eyewitness” testimony as to the employer’s mental processes. But none of this means that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact.
In interpreting Title VII’s evidentiary requirements in disparate treatment cases, the Supreme Court in St. Mary’s v. Hicks resolved a split among the circuit courts and held that employees carry a “pretext plus” burden to prove employment discrimination under Title VII, including race discrimination:
Title VII does not award damages against employers who cannot prove a nondiscriminatory reason for adverse employment action, but only against employers who are proven to have taken adverse employment action by reason of … race. That the employer’s proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff’s proffered reason of race is correct.
In contrast, the Supreme Judicial Court in Blare v. Husky expressly rejected this evidentiary standard, holding that the “pretext only” rules applies to an employee bringing a discrimination claim under the Fair Employment Practices Act:
The pretext only rule is similar to the pretext plus position in that the presumption created by a prima facie case drops from the case if the defendant satisfies its burden of production, but differs in the third stage in that a plaintiff who has established a prima facie case and persuaded the trier of fact that the employer’s articulated justification is not true but a pretext, is entitled to judgment. Massachusetts is a pretext only jurisdiction.
These cases highlight the constantly evolving state of employment law as well as the strategy considerations that must be evaluated in bringing race discrimination claims under state and federal law. Not surprisingly, since these precedents, numerous other decisions on both the state and Supreme Court level have further modified the evidentiary burdens that race discrimination victims must carry in order to prevail.
Race Discrimination Based on Disparate ImpactRace discrimination may also take the form disparate impact, in the case where where a facially-neutral employment practice has a disproportionately adverse effect on members of a particular race. An employee can prevail on such a claim even in the absence of a demonstrated discriminatory intent. In Griggs v. Duke Power, for example, the Supreme Court held that an employer’s intradepartmental transfer policy, which required a high school education and certain scores on aptitude tests, violated Title VII due to its disproportionately adverse effect on black employees and its lack of business necessity.
As background, prior to instituting these requirements, the employer openly engaged in race discrimination by explicitly assigning black employees to work in a less desirable department. Although facially-neutral, the new transfer policy accomplished the same goal of restricting black workers to certain jobs. In finding that the employer violated Title VII based on race discrimination, the Supreme Court reasoned:
The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited.
Later, in Wards Cove Packing v. Atonio, the Supreme Court expanded on an employee’s burden of proof under a disparate impact theory, holding that statistics revealing a racial imbalance do not on their own establish a prima facie case. In doing so, the Supreme Court stated the focus must be on specific employment practices with a “showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites.” In a sharply worded four-judge dissent, Justice Blackmun took strong exception with the majority’s conclusion:
Today a bare majority of the Court takes three major strides backwards in the battle against race discrimination. … One wonders whether the majority still believes that race discrimination — or, more accurately, race discrimination against nonwhites — is a problem in our society, or even remembers that it ever was.
Other significant race discrimination cases based on the disparate impact theory by the Supreme Court include Connecticut v. Teal (rejecting the “bottom line defense”) and Watson v. Fort Worth Bank & Trust (holding that disparate impact analysis is applicable to subjective or discretionary employment practices).
Later, Congress passed the Civil Rights Act of 1991 to address, among other cases, the inequities created under the Wards Cove decision. Specifically, the Act makes clear that, unlike the holding in Wards Cove, “if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.”
Race Discrimination Based on Hostile Work EnvironmentFinally, race discrimination can arise as a hostile work environment, in which an employee is subjected to unwelcome, offensive conduct based on his or her race that is sufficiently severe or pervasive to be considered intimidating, hostile, or abusive by a reasonable person. In Clifton v. Massachusetts Bay Transportation Authority, the Supreme Judicial Court reviewed a race discrimination verdict for the employee and noted, among other things, that a retaliation claim can “consist of a continuing pattern of behavior that is, by its insidious nature, linked to the very acts that make up a claim of hostile work environment.”
The Role of Unconscious Bias in Race Discrimination CasesRacially-motivated decisions in the workplace are not always conscious. Both state and federal law prohibits race discrimination stemming from unconscious bias or stereotypical assumptions in all contexts: hiring, firing, promotion, and other conditions of employment.
In one particular study entitled Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, researchers sought to measure racial discrimination in the labor market by responding to help-wanted ads in Boston and Chicago newspapers. Each fictitious resume was assigned either an African American or White sounding name. The results revealed a clear bias toward applicants with White sounding names, which received 50% more callbacks for interviews regardless of occupation or industry.
Likewise, in another study entitled Race at Work: A Field Experiment of Discrimination in Low-Wage Labor Markets, researchers had participants apply for low-wage jobs in New York City using equivalent resumes. The results revealed that employers systemically favored Caucasians and Latinos over Black applicants – to the point that White applicants recently released from prison were roughly as successful in receiving a callback or job offer as Blacks without criminal records.
Although subtle, race discrimination based on implicit bias can be proven through comparator evidence, shifting explanations, and a pattern of not promoting or hiring a particular class of employees. Overall, smoking gun evidence is not necessary to prevail on an employment discrimination claim: the totality of the evidence can lead a jury or judge to conclude that race or national origin likely motivated the employer.
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